David Bogen and Leslie F. Goldstein have published “Culture, Religion, and Indigenous People” in the Maryland Law Review. The abstract:
The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur–challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed the Supreme Court toward recognition of a common constitutional standard for religion and cultural protection, but also justified political exemptions targeted at tribal behavior that do not extend to other religions or cultures.
And the Washington Law Review published a comment by Charlene Koski called “The Legacy of Solem v. Bartlett: How Courts Have Used Demographics to Bypass Congress and Erode the Basic Principles of Indian Law.” Here is that abstract:
Only Congress has authority to change a reservation’s boundaries, so when disputes arise over whether land is part of a reservation, courts turn to congressional intent. The challenge is that in many cases, Congress expressed its intent to diminish or disestablish a reservation as long as one hundred years ago through a series of “surplus land acts.” To help courts with their task, the Supreme Court in Solem v. Bartlett laid out a three-tiered analysis. This Comment examines how courts have applied modern demographics–part of Solem’s third and least probative tier–and demonstrates that they have consistently and primarily used the factor to support finding reservation diminishment. Furthermore, in 2005, the Supreme Court in City of Sherrill v. Oneida Indian Nation applied Solem‘s justifications for considering demographics to questions of tribal tax immunity and the legal doctrines of laches, acquiescence, and impossibility, laying the groundwork for expansive use of demographics in other areas of Indian law. This Comment argues that courts should stop applying modern demographics to questions of reservation diminishment because doing so has led to outcomes that conflict with congressional Indian policy and undermine core canons of construction that have long governed the relationship between Indian tribes and federal courts.
Turtle Talk 